Opinion
No. CV 03 0194954
January 6, 2004
MEMORANDUM OP DECISION
On April 30, 2003, the plaintiffs, Stirling Collins and Lisa Collins, filed a three-count complaint, pursuant to the accidental failure of suit statute, General Statutes § 52-592, against the defendant, Peerless Insurance Company. The plaintiffs allege that for the period January 13, 2001, to January 13, 2002, they maintained a homeowners policy with the defendant, which policy included coverage for smoke damage and replacement costs. The plaintiffs further allege that on December 23, 2001, as a result of a furnace malfunction, they suffered severe smoke damage to their home. The plaintiffs filed a claim under their homeowners policy with the defendant. Count one asserts a claim in breach of contract based on the defendant's alleged failure to replace damaged items covered under the policy adequately. Counts two and three assert claims under General Statutes § 38a-816, adequately. Counts two and three assert claims under General Statutes § 38a-816, the Connecticut Unfair Insurance Practices Act (CUIPA) and General Statutes § 42a-110b et al, the Connecticut Unfair Trade Practices Act (CUTPA), respectively.
The plaintiffs allege that they previously brought suit against the defendant by placing a writ, summons and complaint in the hands of a marshal on December 19, 2002, with instructions to make proper service. On December 20, 2002, the marshal presented the plaintiffs with a return of service indicating proper service had been made and the action was returned to court. Thus, the plaintiffs allege that this action had been commenced within one year of their loss. On March 24, 2003, the plaintiffs' complaint was dismissed, on the defendant's motion, due to the marshal's neglect to make service pursuant to General Statutes §§ 52-54, 38a-25 and 38a-26.
General Statutes § 52-54 relates to service of process by leaving an attested copy with a defendant either in hand or at the usual place of abode. The other two statutes provide for service of process on the Insurance Commissioner.
On June 30, 2003, the defendant filed motion #102 for summary judgment only as to count one pertaining to breach of contract because the plaintiffs failed to comply with their contractual obligation to bring suit within one year of the covered loss. A "motion for summary judgment is designed to eliminate the delay and expense of litigating an issue when there is no real issue to be tried." Wilson v. New Haven, 213 Conn. 277, 279, 567 A.2d 829 (1989). "A summary judgment is proper where the affidavits do not set forth circumstances which would serve to avoid or impede the normal application of the particular limitations period." (Internal quotation marks omitted.) Collum v. Chapin, 40 Conn. App. 449, 453, 671 A.2d 1329 (1996). "The party seeking summary judgment has the burden of showing the absence of any genuine issue [of] material facts which, under applicable principles of substantive law, entitle him to a judgment as a matter of law . . . and the party opposing such a motion must provide an evidentiary foundation to demonstrate the existence of a genuine issue of material fact." (Internal quotation marks omitted.) Schilberg Integrated Metals Corp. v. Continental Casualty Co., 263 Conn. 245, 252, 819 A.2d 773 (2003). "It is not enough that one opposing a motion for a summary judgment claims there is a genuine issue of material fact; some evidence showing the existence of such an issue must be presented in the counter affidavit." (Internal quotation marks omitted.) Daily v. New Britain Machine Co., 200 Conn. 562, 569, 512 A.2d 893 (1986).
The defendant moves for summary judgment on the ground that there are no genuine issues of material fact and it is entitled to judgment as a matter of law as to count one because the plaintiff failed to file suit within the time limitation contained in the insurance policy. The defendant argues that it is undisputed that the insurance policy mandates that suits upon such contract must be commenced within one year of the covered loss, that the plaintiffs failed to comply with such requirement, and that the defendant is therefore entitled to judgment as a matter of law as to the plaintiffs' breach of contract count (count one). In support of its motion, the defendant submits the following evidence: (1) a certified copy of the insurance policy; (2) the case detail of the plaintiffs' prior action printed off the Connecticut Judicial Branch web site; and (3) the judicial notice from the Stamford Superior Court advising that the motion to dismiss was granted in favor of the defendant in the prior action.
The plaintiffs argue in opposition to the motion for summary judgment that they did commence the suit within the one-year contractual limitation and, in the alternative, that the accidental failure of suit statute, General Statutes § 52-592, applies to the suit and preserves the plaintiffs' right to continue with such suit. In support of this argument, the plaintiffs submitted: (1) a summons and complaint with a January 17, 2003 return date; (2) a copy of a marshal's return dated December 20, 2002; and (3) a copy of the objection to and the memorandum in opposition to the defendant's motion to dismiss in the prior action.
It is undisputed that the plaintiffs' loss occurred on December 23, 2001, and that the current suit was commenced on April 4, 2003, well after the contractual one-year limitation. The parties also agree that the plaintiffs are the named insureds under the insurance policy issued by the defendant, with a policy period of January 3, 2001, to January 13, 2002. Section I, paragraph eight of the insurance policy provides: "8. Suit Against Us. No action can be brought unless the policy provisions have been complied with and the action is started within one year after the date of loss."
The first issue is whether the defendant, the party moving for summary judgment, has met its initial burden of demonstrating the absence of a genuine issue of material fact as to whether the plaintiffs' suit is barred because of their failure to bring it within the contractual time limitation. The defendant submitted a certified copy of the insurance policy and has shown that the plaintiffs failed to comply with the contract provision since they did not commence the present suit within one year of the date of loss. Thus, as to this issue, the defendant has met its burden of showing the absence of any genuine issue of material fact which, under applicable principles of substantive law, entitles him to judgment as a matter of law.
The plaintiffs argue in opposition to the defendant's motion for summary judgment that their service upon the defendant with a writ, summons and complaint that were never filed with the court in the prior action, coupled with the proper service upon a third defendant in the prior action with the writ, summons and complaint that were filed, meet the requirements that the action be started within one year after the date of loss.
In a similar case that centered around an insurance policy containing the same contractual time limitation language as the case presently before the court, the Supreme Court interpreted the term "started" to mean "brought." Bocchino v. Nationwide Mutual Fire Ins. Co., 246 Conn. 378, 383, 716 A.2d 883 (1998). The Supreme Court "has long held that an action is brought once the writ, summons and complaint have been served upon a defendant." Rana v. Ritacco, 236 Conn. 330, 337, 672 A.2d 946 (1996), citing General Statutes § 52-45a; Practice Book § 8-1. Although the plaintiffs initially rely on similar language to support their argument, they later concede that since their first "complaint [was] never returned to the court there would be no action pending and the one year rule probably would not have been met."
To determine the validity of the plaintiffs' argument that the combination of the two attempts at service of process combine to satisfy the contractual time limitation, the language of the contract must be examined. "[A] contract must be construed to effectuate the intent of the parties, which is determined from the language used interpreted in the light of the situation of the parties and the circumstances connected with the transaction . . . [T]he intent of the parties is to be ascertained by a fair and reasonable construction of the written words and . . . the language used must be accorded its common, natural, and ordinary meaning and usage where it can be sensibly applied to the subject matter of the contract . . . Where the language of the contract is clear and unambiguous, the contract is to be given effect according to its terms." (Internal quotation marks omitted.) Poole v. Waterbury, 266 Conn. 68, 87-88, 831 A.2d 211 (2003).
The relevant contract language in this case provides that "[n]o action can be brought unless . . . the action is started within one year after the date of loss." The use of the word "the" before "action" indicates that only one action was contemplated. Thus, because the action that is currently before the court was not started within the one-year limitation, it is barred according to the contract. Moreover, the plaintiffs, the parties opposing the motion for summary judgment, have failed to meet their burden of providing an evidentiary foundation necessary to demonstrate the existence of a genuine issue of material fact as to this issue.
The defendant, relying on Supreme Court authority, argues that Connecticut's accidental failure of suit statute does not apply to contractual time limitations. In doing so, the defendant has met its burden of showing the absence of any genuine issue of material fact which, under applicable principles of substantive law, entitles him to judgment as a matter of law as to this issue as well. In Bocchino v. Nationwide Mutual Fire Ins. Co., supra, 245 Conn. 382, the Supreme Court stated that General Statutes § 52-592 does not apply to contractual limitation periods set forth in insurance contracts. Boochino involved the same contractual language as the present case and stated that "the accidental failure of suit statute applies only to actions barred by an otherwise applicable statute of limitations, and not to an applicable contractual limitation period . . ." (Emphasis in original.)
The plaintiffs attempt to distinguish the present case from Bocchino by arguing that the plaintiffs in Bocchino and in all the cases cited therein were at fault, while in the case at hand the failure of the original suit was caused by the marshal, not the attorney. This argument is undercut by the facts of Bocchino, since in that case "the plaintiff's action was dismissed by the trial court . . . under its dormancy program as a result of a computer generated error." Bocchino v. Nationwide Mutual Fire Ins. Co., supra, 246 Conn. 391. Additionally, in response to a similar argument, the Bocchino court stated that, "the only aspects of the procedural history of the prior case that entered into the court's analysis were the fact that [the plaintiff] brought an action upon the policy within twelve months after the [loss], [and] that in th[at] action [the plaintiff] was nonsuited for reasons not touching the merits of his cause . . ." (Internal quotation marks omitted.) Id., 384 n. 5. Since the procedural history of the present case is very similar to Bocchino, in that the prior case was dismissed for reasons not touching the merits, this present action is not distinguishable from Bocchino.
The plaintiffs have argued that General Statutes § 52-592 is applicable, but they have not pointed to any facts that support such an argument. As the plaintiffs did not commence this action within the time limited by the contract and § 52-592 does not apply, the defendant cannot be found liable for breach of contract under the policy. Since there are no material facts in dispute as to the plaintiffs' untimely commencement of this action, the defendant's motion for summary judgment is granted.
Dated at Stamford, Connecticut, this 2nd day of January 2004.
WILLIAM B. LEWIS, JUDGE.